Full Text
HIGH COURT OF DELHI
Date of Decision: 09th February, 2023
LALIT NARAYAN ..... Petitioner
Through: Mr. Nikhil Bhardwaj, Advocate
Through: Mr. Rajesh Gogna, Central Government Standing Counsel with
Ms. Priya Singh, Advocate.
JUDGMENT
1. Present writ petition has been filed by the Petitioner seekingthe following reliefs:- “i) issue an appropriate writ, order or direction commanding the respondents to issue the correct offer of appointment dated 06.08.2015 indicating that the petitioner has been appointed on direct recruitment basis and after clarifying that he has not been appointed on deputation basis. ii) The respondents be directed to treat the petitioner as having been appointed to the post of Deputy Director (Administration) on direct recruitment basis for all purposes. iii) The respondents may further be directed to grant all consequential benefits including seniority, increments, pay fixation, further promotions, and all other benefits arising on the basis of treating the petitioner as having been directed recruited to the post of Deputy Director (Administration). iv) issue an appropriate writ, order or direction for quashing and setting aside the impugned advertisement dated 21.07.2018 issued by the Respondent department.”
2. Factual narrative that emerges from the writ petition is that Petitioner joined Respondent No.2/Pandit Deen Dayal Upadhyaya National Institute for Persons with Physical Disabilities [Divyangjan] (hereinafter referredto as ‘the Institute’), as an Occupational Therapist in 1995 and earned various promotions thereafter including the last one on 20.05.2014 as Lecturer (Occupational Therapist).
3. On 2-8th August, 2014, an advertisement was issued by the Institute, inviting applications for the post of Deputy Director (Administration) in the Unreserved Category, carrying Pay Band Rs.15600-39100/- with Grade Pay of Rs.6600/- on direct recruitment/deputation basis. The eligibility criteria indicated on the website was as follows:- “Essential –
(i) Post Graduate Degree from a recognised University or equivalent.
(ii) 5 years administrative experience in a responsible capacity in the pay scale of Rs. 8000-13500 (pre-revised), 8 years in the pay scale of 6500-10500 (pre-revised). Desirable
(iii) Experience in handling procurement of stores, recruitment of personnel, Budget and Accounts at the supervisory level. (iv) 2 years experience in framing/implementing programmes in the welfare, employment, education and rehabilitation of the handicapped.
DEPUTATION BASIS The officers holding analogous posts in the Centre/State PSUs/Autonomous bodies or officers in the pay scale of 8000-13500 (Pre-revised) with 5 years regular service or/and in the scale of pay 6500-10500 (Pre-revised) with 8 years regular service with administration / establishment / accounts experience.”
4. It is the case of the Petitioner that he applied pursuant to the said advertisement on direct recruitment basis and not on deputation basis, as he was working in the Institute itself and was ineligible for consideration on deputation. Theminutes of the Selection Committee meeting held on 07.07.2015, obtained by the Petitioner under the Right to Information Act, 2005 (hereinafter referred to as ‘RTI Act’), revealed that 42 applications had been received, out of which 22 candidates were foundeligible and only10 amongst them were in the Unreserved Category. The eligible candidates were called for interview including the Petitioner and after considering the candidature of all candidates,the Selection Committee recommended names of three candidates in the order of merit with Petitioner being placed at Serial No.1. The recommendations were accepted by the Competent Authority and an offer of appointment was issued to the Petitioner on 06.08.2015 for the post of Deputy Director (Administration) in PB-3 with Grade Pay of Rs.6600/-.
5. Petitioner states that when the offer of appointment was received, he noticedthat erroneously his nature of appointment was mentioned as ‘transfer on deputation basis’, initially for a period of one year, on the terms and conditions contained in DoPT O.M. dated 17.06.2010.On the same day, Petitioner wrote to the Director of the Instituteto issue a correct appointment letter as he had applied as a direct recruitment candidate. On 20.07.2016, the Administrative Officer of the Institute admitted that the appointment of the Petitioner was on direct recruitment basis and recommended for his absorption in that capacity,which is a fact which the Petitioner claims to have learnt from the noting in the file of the Institute dated 20.07.2016, obtained by the Petitioner under the RTI Act.
6. On 02.08.2016, an Office Order was issued by the Institute conveying the approval of the Competent Authority for extension of one year period from 07.08.2016to 06.08.2017. As per the Petitioner, several subsequent notings,includinga noting dated 13.12.2016 in the file reflect that the concerned officials in the Institute were favorably inclinedto treat the Petitioner as a permanent appointee on the post of Deputy Director (Administration) as this was in consonance with the advertisement and law on the subject.It is categorically averred by the Petitioner that on 18.01.2017, action was initiated to correct the appointment letter of the Petitioner and subsequent notings dated 19.01.2017 and23.01.2017 reflect that a decision was, in fact,taken to correct the error, with the approval of Director of the Institute. However, the decision remined on paper and did not translate into action,leading to the Petitioner filingseveral representations between 2016 to 2018. In the meantime,the period of alleged deputation of the Petitioner was extended by one year from 07.08.2017 to 06.08.2018.
7. As the narrative goes, thepresent writ petition was triggered by the fact that despite the Petitioner occupying the post of Deputy Director (Administration) which was a solitary post, Institute issued an advertisement on 21.07.2018 in the newspapers, inviting online applications for fillingup the post. Apprehending that the Institute may repatriate/revert the Petitioner back to the post of Lecturer (Occupational Therapist), since the Department had so far not corrected the error in the offer letter,Petitionerapproachedthis Court seeking the reliefs aforementioned.
8. When the writ petition was filed, no interim order was granted by the Court, constraining the Petitioner to approach the Division Bench in LPA 429/2018. By a detailed order dated 06.08.2018, the Division Bench while disposing of the Appeal directed that since the Petitioner had worked at thesaid post, he shall continue to carry out his duties as DeputyDirector (Administration),subject to final orders passed by the learned Single Judge in the stay application or in the writ petition.This order is admittedly operating even today and the Petitioner has continued to work as DeputyDirector (Administration). Relevant part of the order of the Division Bench is as follows:- “7. Reading of the advertisement would show that the same pertains to direct recruitment as also on deputation basis. The communications which we have extracted in the aforegoing paragraph 2 would show that the appellant herein was being considered as direct recruit and not on deputation basis except the letter of appointment. The respondent, in our view, is required to explain as to the reasons why he was being considered as a direct recruit and why the letter of appointment talks about deputation. These questions, in our view, can only be answered once the pleadings are complete and the matter is taken up for hearing. However, since the appellant has already worked at the post of Deputy Director (Admn.) and accordingly, the appellant will continue to carry out his duties as Deputy Director (Admn.). This is subject to final orders which may be passed either in the stay application or in the writ petition. No special equity will accrue in favour of the appellant and in case the appellant does not succeed, dues of salary will also be refunded by him as has undertaken by him in Court today.
8. With these directions, the appeal along with all pending applications are disposed of.
9. Counter affidavits be filed within one week. Rejoinder(s), if any, be filed within one week thereafter. The date of 29.10.2018 is cancelled.
10. List on 10.09.2018 before the learned Single Judge.
11. Dasti.”
9. Contentions raised on behalf of the Petitioner: (A)From the Advertisement issued in the Employment News on 2- 8th August, 2014 it is explicit that the Institute resorted to a composite method of appointment to the post of Deputy Director (Administration) and invited applications on direct recruitment/deputation basis and not on deputation alone or deputation as the first mode. Indisputably, Petitioner had applied for appointment on direct recruitment, being ineligible for deputation as he was serving in the Institute and could not be appointed on deputation; (B)The stand of the Institute that Petitioner was appointed on deputation is wholly misconceivedin law. Deputation can only be service outsidethe cadre or outside the parent department, in which an employee is serving.By no stretch of imagination can an internal candidate serving in a department be appointed on deputation to a post in the same department. Admittedly, Petitioner joined the Institute as Occupational Therapist in the year 1995 and after earning various promotions from time to time,was serving as Lecturer (Occupational Therapist) in the Institutewhen he applied for the post in question. Reliance is placed on the judgment of theSupreme Court in Union of India and Others v. R. Thiyagarajan, (2020) 5 SCC 201 for the proposition that deputation is an assignment of an employee from one department or cadre or organization to another department/cadre/organization in public interest to meet the exigencies of public service; (C)To the best of knowledge of the Petitioner, out of 22 eligible candidates, who were shortlisted for interview, only 3 had applied on deputation and the others including the Petitioner had applied on direct recruitment basis. The Scrutiny Committee while shortlisting, examined and scrutinized the applications of thecandidatesand was aware that the Petitioner was an Applicant on direct recruitment basis. At no stage, during thescrutiny of the applications or during the interview before the Selection Committee,Petitioner was informed that he was being considered for appointment for a short/limited period on deputation andmost importantly no consent was sought for him for the said purpose. Petitioner was not willing to be appointed on deputation for a temporary period and it is unfair to take away his right of permanent andsubstantive to the post of Deputy Director (Administration); (D)The offer letter does stipulate that appointment of the Petitioner was on deputation basis, however,the Petitioner neveraccepted the said term of appointment and on 06.08.2015 itself voiced his protest anddemanded correction of the appointment letter; and (E) Impugned action of the Institute is contrary to its own understanding that the Petitioner had appliedand was appointed on Direct Recruitment basis, which is reflected from various notings on the file, including those dated 20.07.2016 and 13.12.2016.
10. Contentions raised on behalf of the Institute: (A)As per the Recruitment Rules (‘RRs’),post of Deputy Director (Administration) in theInstitute is to be filled up by ‘transfer on deputation basis failing which by direct recruitment’. On the basis of performance of thecandidates during theinterview, the Selection Committee recommended 3 candidates in the order of merit and Petitioner was placed at Serial No.1. Minutes of the Selection Committee reflect that Petitioner was recommended for appointment on deputation basis, initially for a period of one year, which was approved by theCompetent Authority and the offer letter issued on 06.08.2015 corroborates this fact; (B)Petitioner received theoffer of appointment,without anyprotest or demur,consciousof the fact that he was being appointed on deputation and not on direct recruitment basis. It is, therefore, too late in the day for him to contest the nature of his appointmentand seek rectification in the appointment letter. In any case, it is wrong for the Petitioner to contend that the deputation was within the same department as the Petitioner was initially appointed in Occupational Therapy Department and later as Demonstrator (Occupational Therapy) followed by appointment as a Senior Occupational Therapist and finally, as Lecturer (Occupational Therapist) and therefore, the appointment as Deputy Director (Administration) is in a different department i.e. from Occupational Therapy to Administration; (C)It is the prerogative of the CompetentAuthority to adopt one of the two modes of recruitment, provided in the RRs and exercising the said power, theCompetent Authority adopted the mode of deputation.The RRs applicable to the post in question provide that direct recruitment can be resorted to only upon failure of selection on deputation and the impugned action is thus in consonance with theRRs. It is not for the Petitioner to decide the mode of recruitment andnor is it within the scope of powers of judicial review of this Court to substitute its views for that of the Selection Committee or the Competent Authority, who have taken the decision to appoint the Petitioner to the post of Deputy Director (Administration) on deputation; (D)Appointment of the Petitioneron deputation is permissible and legally tenable in view of the provisions of DoPT O.M. dated 17.06.2010. As per Clause 2.[1] of the said O.M., interdepartmental deputation is permitted,which means that persons serving within thedepartmentcan be appointedon deputation in the same department; and (E) Contrary to the standof the Petitioner, the notingsin the file do not support his plea and instead reflect that from the stageof the initial proposalto the final approval, selection was intended to be only on deputation basis. Now that the Petitioner has completed three years of his deputation and the post has fallen vacant on 06.08.2018, the Competent Authority must be permitted to proceed with selection pursuant to the fresh advertisement issued on 21.07.2018.
11. I have heard learned counsel for the Petitioner and learned Central Government Standing Counsel for the Respondents and examined theirrival contentions as well as the notings in the shadow file of the Institute, handed over during the course of arguments.
12. It is not in disputethat the Institute invited online applications for filling up one post of Deputy Director (Administration) in PB-3 with Grade Pay of Rs.6600/- on ‘direct recruitment/ deputation’ basis. From the pleadings of the parties and the arguments addressed, it emerges that thereis no rebuttal to the stand of the Petitioner that he had applied on ‘direct recruitment’ basis and not for ‘deputation’. This stand of the Petitioner is fortified by theapplication form submittedby him and several notings in thefile of the Institute.ThisCourt has also perused the RRs for the post of Deputy Director (Administration), which have been filed alongwith the counteraffidavit by the Institute. As per the RRs, the post of Deputy Director (Administration) is to be filled up by the mode of ‘transfer on deputation failingwhich by direct recruitment’.
13. From the perusal of the file and the minutes of the Selection Committee it is clear that in response to the advertisement, 42 applications were received, whereafter a Scrutiny Committee was constituted for segregating theeligible and ineligible candidates. The ScrutinyCommitteeshortlisted 21 eligible candidates,afterwhich the eligibility was re-checked several times for those shortlisted by the ScrutinyCommitteeand thereafter the matter was placed before the Competent Authority of the Institute for constituting a Selection Committee for interviewingthe 21 eligible candidates.On the basis of performance of the candidates during the interview, Selection Committee recommended 3 candidates in the order of merit, on 09.07.2015. Albeit, it is true that the Selection Committee recommended the candidates on deputation basis for one year, however, thenotings prior thereto,do not indicate that the Petitioner was being considered for appointment on deputation and there is no material to show that his willingness/consentwas taken for deputation. On the contrary,there are references to the Petitioner having applied on direct recruitment basis. Pertinently, it is not borne out from the record that a separate exercise was carried out to first resort to the method of selection on deputation, as that would have entailed segregation of applicants applying from outside for deputation and non-consideration of direct recruitment candidates, such as the Petitioner at the first instance.
14. While it is true that the RRs provide for appointment to the post of DeputyDirector (Administration) on deputation failing which by direct recruitment,however, from the advertisement which was the startingpoint of selection, it is evident that the Institute had taken a conscious decision to fill up the post by a composite method, without resorting to deputation as the first/separate mode and which is why the advertisement mentioned‘direct recruitment/ deputation basis’.This is fortified from the file notings where the entire process of screening and selection was composite in nature with no segregation of candidates intotwo categories i.e. those who applied for deputation and those who applied on direct recruitment basis. The intent clearly was to have a combined selection process such that if an internal candidate was recommended, he was to be appointed on direct recruitment basis and if an outside candidate was selected, he would be appointed on deputation. Therefore, it cannot be urged by the Instituteat this stage, contraryto the record, that the selection of the Petitioner was on deputation basis.
15. The stand of the Institute is even otherwise untenable in law and cannot be sustained. No doubt that in the minutes of the Selection Committee andthe offer of appointment issuedto the Petitioner, it is stated that the appointment was on deputation basis, however, at the highest,this can be termed as a mistake or an erroneous understanding of the concept of ‘deputation’ in service jurisprudence.
16. It is trite that ‘deputation’ is a concept which envisages assignment of an employee from one department or cadre to another department or cadre in public interest. In common parlance it is known as a triangular decision,involving willingness of theborrowing department to take an employee on deputation, consent/no objection of the lending department to lend the services of its employee, being the parent department and willingness/consent of the employee to be deputed. In thiscontext, I may refer to a passage from the judgment of the Supreme Court in R. Thiyagarajan (supra) as follows:-
17. I may also profitably refer to a recent judgmentof the Supreme Court in Sarita Singh v. Shree Infosoft Private Limited, 2022 SCC OnLine SC 65, relevant para of which is as under:-
18. It is thus clear that there are two essential facets of deputation: (a) deputation can only be outside the cadre/department and is a temporary measure as theemployee has to return back to the parent department on expiry of deputation period; and (b) it involves the consent of the borrowing department, the lending department and willingness or consent of the employee concerned. It needs no gainsaying that in view of this position of law, the appointment of the Petitioner cannot be termed as deputation as the appointment was not outside thecadre or department. Petitioner was working within the Institutealbeit on different postsand the argument of the Institute that the post of Deputy Director(Administration) is outside the Institute and the services of the Petitioner were borrowed from another department and/or that the Institute was a lending department, is an argument of desperation to cover an illegal action, to say the least. This Court, therefore, rejects thecontention of the Institute that the Petitioner was appointed on ‘deputation’.
19. Much emphasiswas laid by the counsel for the Respondents on the minutes of the Selection Committee and the offer of appointment to plead that Petitioner is estopped from contesting the nature of his appointmentat this late stage,havingaccepted it at the relevant time. This contention of the Institute also merits rejection. First and foremost, it is factually incorrect that Petitioner accepted the offer without a demur or protest. Petitioner received the offer of appointmenton 06.08.2015and on the same day, he voiced his protest and even wrote to the Director to correct the appointment letter. The communication is a part of the file and notings reflect that the Petitioner was consistently seeking rectification of the terms of appointment, assertingthat he had appliedon direct recruitment basis and not for deputation. Secondly, merely because the Institute has committed a mistake in wrongly recommending the Petitioner on deputation,this Court cannot shut its eyes to the law on deputation, as brought out in the earlier part of the judgment.It is the Institute which will require to correct its error and not vice-versa.
20. Heavy reliance is placed by the Institute on O.M. dated 17.06.2010,which relates to ‘transfer on deputation/foreign service of Central Government Employees to ex-cadre posts under the Central Government / State Governments / Public Sector Undertakings / AutonomousBodies, Universities / UT Administration, Local Bodies etc. and vice-versa Regulation of pay, Deputation (duty) Allowance, tenure of deputation/foreign service and other terms and conditions – regarding’.From a plain reading of the O.M.,it is evident that it deals with transfer on deputation of Central Government Employees to ex-cadre posts under the CentralGovernment / State Governments / PSUs /Autonomous Bodies, etc. An ‘ex-cadre’ post means a post outside the cadre of posts comprised in a service as opposed to a ‘cadre’ post which means a permanent post in the service.It is not the case of the Institute that the post of DeputyDirector (Administration) to which the Petitioner is appointed, is an ex-cadre post.The argument of the Institute is even otherwise wholly fallaciousfor the reason that the said O.M. itself provides that when an employee of the Central Governmentis sought to be deputed to ex-cadre post, he will require to exercise an option to elect to draw either the pay in the scale of pay of the deputation post or his/her basic pay in the parent cadre along with deputation allowance and personal pay, if any. None of these options were either sought from the Petitioner nor were exercised by him. It is also not refuted by the counsel for the Institute during the course of hearing that no deputation allowance was paid to the Petitioner during his tenure as Deputy Director (Administration). The O.M. is therefore inapplicableto the present case and reliance on the same is misconceived.
21. For all the aforesaid reasons, this Court holds that Petitioner will be treated as having been appointed to the post of Deputy Director (Administration) on direct recruitmentbasis for all purposes, which is admittedly one of the modes of recruitment under the RRs and is consonancewith advertisement, notifyinga composite method of recruitment on direct recruitment/deputation basis. The Institute is therefore directed to correct the appointment letter of the Petitioner and delete the words indicating his appointment on ‘deputation’.
22. As a fall out of this, Petitioner will not be reverted to his erstwhile post of Lecturer (Occupational Therapist) and will be entitled to all consequential benefits accruing out of appointment through the mode of direct recruitment.
23. In light of the above, the impugned advertisement dated 21.07.2018,issuedby the Institute, calling for fresh applications for filling up thepost of Deputy Director(Administration) on deputation basis, is quashed and set aside.
24. Writ petition is allowed in the aforesaid terms and disposed of along with the pending application.